Citation Nr: 18152556 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 16-00 790 DATE: November 27, 2018 ORDER The claim of entitlement to burial benefits is denied. FINDINGS OF FACT 1. In August 2013, the Veteran died at his private residence and was buried later that month. The appellant’s application for burial benefits was received in September 2013. 2. The Veteran was not receiving any VA compensation or pension benefits at the time of her death. 3. There was no original or reopened claim for VA compensation or pension benefits pending at the time of the Veteran’s death, which has been granted. 4. The Veteran was not discharged from service due to a disability incurred or aggravated in the line of duty. 5. The Veteran’s body was not unclaimed, and the appellant paid expenses related to the Veteran’s burial. 6. The Veteran did not die while admitted to a VA facility for hospital, nursing home, or domiciliary care, or while admitted or traveling to a non-VA facility at VA expense for the purpose of examination, treatment, or care. CONCLUSION OF LAW The criteria for payment of burial benefits are not met. 38 U.S.C. §§ 2302, 2303; 38 C.F.R. §§ 3.1600-3.1610 (as in effect prior to July 7, 2014); 38 C.F.R. §§ 3.1700-3.1713. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1962 to June 1964. He died in August 2013. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from an October 2013 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota denied the claim of entitlement to burial benefits. The appellant filed a notice of disagreement (NOD) in January 2014. The RO issued a statement of the case (SOC) in December 2015 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2016. The appellant asserts that she her entitlement to burial benefits to recoup the expenses related to the Veteran’s funeral and burial. Effective July 7, 2014, VA amended its regulations governing entitlement to monetary burial benefits, which included burial allowances for service-connected and non-service-connected deaths, a plot or interment allowance, and reimbursement of transportation expenses. Specifically, VA removed the existing regulations (38 C.F.R. §§ 3.1600 through 3.1612) and replaced them with new regulations renumbered as 38 C.F.R. §§ 3.1700 through 3.1713. See 79 Fed. Reg. 32,653-32,662 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713). The final rule is applicable to claims for burial benefits pending on or after July 7, 2014. (The appellant’s claim for burial benefits has been pending since September 2013, i.e., prior to the effective date of the rule change on July 7, 2014). Generally, when a regulation changes during the pendency of a claim, VA may consider both the new and old provisions, with due consideration to the effective date of the changes, and apply the most favorable criteria (subject to effective date rules). However, the provisions potentially applicable to the facts of this case have undergone no substantive changes. Both versions are equally favorable. The Board will principally cite the old regulations, in effect at the time the appellant’s claim was filed in September 2013. It is noted, at the outset, that claims for a burial allowance may be executed only by “[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses.” 38 C.F.R. § 3.1601(a)(1) (now at 38 C.F.R. § 3.1702(b)(3)). Here, the Veteran died in August 2013 and the appellant filed the claim for burial benefits in September 2013. In her application for burial benefits, the appellant expressly stated that she was not claiming that service-connected burial benefits were warranted. Accordingly, the Board will only consider whether nonservice-connected burial benefits are warranted. If the cause of a veteran’s death is not service connected, entitlement is based upon the following conditions: at the time of death, the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); or, the veteran had an original claim for either benefit pending at the time of her death for which there was evidence available on the date of death to support the award for compensation or pension or, in the case of a reopened claim, there was sufficient prima facie evidence of record on the date of death to show entitlement; or, the deceased was a veteran of any war or was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and there is no next of kin and the veteran’s estate funds are insufficient to cover expenses. See 38 U.S.C. § 2302(a); 38 C.F.R. § 3.1600(b) (now 38 C.F.R. §§ 3.1705(b), (e); 3.1708(b), (c)). Alternatively, a burial allowance may be paid if a veteran died from nonservice-connected causes while properly admitted to a VA facility for hospital, nursing home, or domiciliary care; or while admitted or traveling to a non-VA facility with prior authorization and at VA expense for the purpose of examination, treatment, or care. See 38 U.S.C. § 2303(a); 38 C.F.R. §§ 3.1600(c), 3.1605 (now 38 C.F.R. § 3.1706(b), (d)). An application for nonservice-connected burial and funeral expenses must be filed within two years after the burial or cremation of the veteran’s body. 38 U.S.C. § 2304; 38 C.F.R. § 3.1601(a) (now 38 C.F.R. § 3.1703(a)). This time limit also applies to claims for a plot or interment allowance under 38 C.F.R. § 3.1600(f). The two-year time limit does not apply to claims for service-connected burial allowance, or for the cost of transporting a veteran’s body to the place of burial when the veteran dies while properly hospitalized by VA, or for burial in a national cemetery. 38 C.F.R. § 3.1601(a) (now 38 C.F.R. § 3.1703(a)). Here, the Board notes that the appellant’s claim for burial benefits was filed within two years of the Veteran’s burial. Hence, the application was timely. However, the criteria for the award of nonservice-connected burial benefits are not met. The Veteran is not shown by the record to have been granted service connection for any disability at the time of his death in August 2013, and he was not receiving any VA compensation or pension benefits. The Veteran did not have any claim for compensation pending at the time of his death. Additionally, the Veteran is not shown to have been discharged or released from active service for a disability incurred or aggravated in the line of duty nor was his body held by a State. Further, it is uncontroverted that the Veteran died at his residence. The Board acknowledges the appellant’s argument that a VA employee told her she was entitled to burial benefits. See January 2016 Form 9. The Board does not question the appellant’s veracity. However, that argument is unavailing. Even if such misinformation was provided, as alleged, that would not prevent the government from denying a benefit to which a claimant is not entitled. See McCay v. Brown, 106 F.3d 1577, 1582 (Fed. Cir. 1997) and Elsevier v. Derwinski, 1 Vet. App. 150, 153-55 (1991); see also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990). The Board is sympathetic to the fact that the appellant incurred costs related to the Veteran’s funeral and burial, and acknowledges that the Veteran had honorable service. However, the legal authority pertaining to burial benefits is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. As, on these facts, there is no legal basis to award burial benefits, the appellant’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel